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ANALYSIS OF MARCH 18, 2008 CAV OPINION

[Posted March 18, 2008] The Court of Appeals of Virginia gives us one published opinion today, and the analysis should be of great use to criminal practitioners. The main topic is double jeopardy, and the case is Ostrander v. Commonwealth.

Ostrander and his wife split some time before August 2005. The now-estranged husband perceived that his wife had a paramour, and he just couldn’t stand the thought of that; he accordingly decided to rid himself of this theoretical competition for his wife’s affections (which competition Ostrander was unsurprisingly losing). He settled on murder as the best method of solving this problem. (He also wanted the wife’s divorce lawyer beaten up, but he didn’t get indicted for that. Divorce lawyers across the Commonwealth will be howling in protest over that act of prosecutorial discretion.)

For some reason, though, he decided he didn’t want the “pleasure” of doing the deed himself; he accordingly decided to call in some muscle from out of state. He phoned a pal in Ohio and summoned him to Virginia, saying, “I’ve got some work for you.” When the pal got to Virginia, he learned just what kind of work it was, and cringed inwardly. Knowing that he couldn’t get back to Ohio without some semblance of Ostrander’s goodwill, he played along with the discussion, eventually accepting some money to go back home, allegedly to recruit a hit man.

Once he got home, of course, the Ohioan did no recruiting whatsoever; he did his best to avoid Ostrander’s calls. When those calls became persistent, the pal made a call of a different sort – to a Buckeye detective. That detective, in turn, called in an ATF agent, who agreed to pose as the recruited hit man. As you’ll see, the agent was a formidable actor; in a subsequent visit, he convinced Ostrander that he was prepared to do the deed. Ostrander, having spoken on several previous occasions with his pal about the plan (they used code words to describe the crime, in case anyone was listening in – and they were), and the pal had no doubt what the nature of the contract was.

Ostrander met his pal and the faux hit man on August 28, 2005. Ostrander drove them to the target’s house and business and showed them around. He gave them $300 of an agreed $5,000 fee (that’s probably all his ATM would allow him to withdraw), and promised them the rest of the money in the next few weeks. The two fake murderers then left. They came back the next day with a story that it had been too crowded to pull off the job, but promising to try again. Ostrander gave them another $100. Shortly after that, he was in custody.

Now, faithful readers of this site know that that’s a more detailed factual recitation than I usually give, but it’s essential to understand today’s ruling. The prosecutor secured indictments charging solicitation to commit murder and attempted capital murder for hire. Ostrander got himself an outstanding criminal defense lawyer, and that lawyer persuaded him to plead guilty to the lesser offense (solicitation) – you have to admit, with as much evidence as the prosecution has now, fighting the charges is out of the question – and then moved the trial court to dismiss the other count. The lawyer reasoned, quite plausibly, that soliciting someone to commit a murder is a lesser included offense of attempted murder for hire (of whatever variety), because one cannot attempt to hire someone to commit a murder without soliciting the hit man.

When you first read this argument, it has a visceral appeal, but today’s analysis reveals the hidden trapdoor that plunges Ostrander to an affirmance of his two convictions. The problem, as noted by today’s majority opinion (Judge Clements, joined by Judge Haley) is this:

Under familiar caselaw, double jeopardy, in the form of two punishments for the same conduct, kicks in where each offense requires proof of something that isn’t required for the other. Here, Ostrander conceded that attempted capital murder for hire requires proof of a separate element – committing an act in furtherance of the crime, instead of just talking about it. But what about the other way around? The court notes today that, considered in the abstract, it is possible to be convicted of the attempted capital murder for hire without being guilty of solicitation to commit murder. How is that possible? Easy; just look at it from the perspective of the hit man. He’s guilty of attempted murder for hire even if he never solicited anybody (he is, in the words of the opinion, the “solicitee” rather than the “solicitor”). Thus, convicting someone of soliciting murder requires proof of an element that isn’t required in the attempted murder for hire count, so it’s not double jeopardy.

There is an interesting concurrence by Judge Humphreys. He agrees that the convictions should be affirmed, but he gets to that conclusion by a different route. The Commonwealth’s indictments both asserted that the crimes occurred “on or about August 28, 2005.” But Judge Humphreys points to caselaw that holds that the mention of a specific date in indictments can be ignored as surplusage if those dates are not “essential to the offense.” This is probably a criminal-law cousin of amending pleadings to conform to the evidence in civil cases. Judge Humphreys points to ample evidence of solicitations occurring on earlier dates – remember all those pestering phone calls? – and would hold that they furnish sufficient evidence in the record from which the factfinder could have found discrete acts in furtherance of the separate charges. If you try criminal cases involving allegations on specific days, you should keep that doctrine in mind when you go to court.